The Narrow and Shallow Bite of Romer and the Eminent Rationality of Dual-Gender Marriage: A (Partial) Response to Professor Koppleman

Authors

Richard F. Duncan, University of Nebraska College of LawFollow

Date of this Version

1997

Citation

William & Mary Bill of Rights Journal (1997) 6: 147-166.

Comments

Copyright 1997, College of William and Mary. Used by permission.

Abstract

The Supreme Court's opinion in Romer has a very narrow and shallow bite. It does not hold that homosexuals are a suspect or quasi-suspect class under the Equal Protection Clause. It does not overrule or undermine the Court's landmark decision in Bowers v. Hardwick."° It does not hold that moral disapproval of homosexual conduct is invidious or irrational, nor does it in any way state or imply-as Professor Koppelman asserts-that laws that discriminate against homosexuals are always "constitutionally doubtful ... because they will always arouse suspicion that they rest on a bare desire to harm a politically unpopular group."

The constitutional flaw in Amendment 2 was its extreme overbreadth, not the identity of the group it adversely affected. The Court did not presume that the Amendment was tainted by an impermissible dislike for gays. The Romer majority applied the lowest standard of review-the rational basis test-and found that no legitimate purpose reasonably fit the infinitely broad sweep of the disability imposed by the Amendment. It was the "sheer breadth""° of Amendment 2, not any presumed animus against homosexuals, that resulted in the law's facial invalidation. The case would have been decided in exactly the same way if Amendment 2 had affected smokers, insurance salesmen, or any other "narrowly defined" group instead of homosexuals. Professor Koppelman's attempt to write the "missing pages"'" of Romer in order to suggest that, in effect, the case treats homosexuals as some kind of a suspect class does not reflect the reality of the majority opinion as it was issued by the Court.

In addition to responding to Professor Koppelman's arguments, I have attempted to analyze Romer's potential impact on one of the most controversial issues of our time-the constitutionality of traditional laws defining marriage as a relationship between one man and one woman. Traditional marriage laws serve many legitimate interests, any one of which by itself is sufficient to support these laws under Romer and the rational basis test. If the Court is ever so foolish as to declare the dual-gender definition of marriage unconstitutional, it will need much more than Romer to explain this sad conclusion.